Virginia Lawyer

VaLawyer_Feb2012

Issue link: http://virginialawyer.vsb.org/i/55919

Contents of this Issue

Navigation

Page 43 of 71

"Temporary Absence": A Continuing Obstacle to Clarity in Child Custody Jurisdiction by Peter W. Buchbauer and Lawrence P. Vance Virginia adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)1 in 2001. This statute was envisioned as correcting deficiencies in the prior Uniform Child Custody Jurisdiction Act. However, the meaning of the term "temporary absence" in the statute remains unclear. Peter W. Buchbauer formed Buchbauer & McGuire PC in April, 1995. Prior to 1995, he was a principal in the firm of Swift & Buchbauer PC and an associate in the firms of Douglas M. Swift Jr. PC and Williams & Swift. He focuses his practice in family law. He is a fellow of the American Academy of Matrimonial Lawyers. He served as the chair of the Family Law Section of the Virginia State Bar 2009–10 and is a member of the Virginia Family Law Coalition. Recently, we discovered the lack of clarity while representing a mother in a child custody case. The mother and father traveled with their minor child from Virginia to the Former Yugoslav Republic of Macedonia in December, 2006. The father works for a Virginia employer and was transferred to Macedonia. He had a contract which ensured his employment in Macedonia through July 31, 2007, and provided for the possibility of extending his employment there. Prior to the move, the parties sold their residence and vehicles. While in Macedonia, the father's employment was extended, the couple had another child, and except for one visit to the United States for one week in 2008, the family lived continuously in Macedonia until the father moved to Virginia in May, 2009. The father initiated custody litigation in the Juvenile and Domestic Relations District Court in late April, 2009. At first blush, this seemed a no brainer. The Lawrence P. Vance joined the firm of Buchbauer & McGuire PC in January 2007. Prior to joining Buchbauer & McGuire, Vance was a principal in the firm of Vance & Smalls PC in Winchester and an associate in the law offices of Franklin R. Blatt PC in Harrisonburg. He has a general practice with a primary focus in family law and non-bank- ruptcy creditor collec- tions. He has served for three years as the Bench- Bar Committee Chair of the Winchester-Frederick County Bar Association. child had lived in Macedonia with her parents on a continuous basis since December, 2006. Virginia could have no jurisdiction because the home state was Macedonia, right? Not so fast. The father argued that because of the nature of his employ- ment, the terms of his employment contract, the family ties to Virginia and the intent of the parties to return, the two-and-one-half years they spent in Macedonia was a period of temporary absence under the statute and that Virginia remained the home state, since they had resided here for more than six months before they temporarily moved to Macedonia. Suddenly the lack of definition of the term "temporary absence" in the statute created an obstacle to the clarity that the UCCJEA was sup- posed to afford. In our case, the Juvenile and 44 VIRGINIA LAWYER | February 2012 | Vol. 60 | FAMILY LAW SECTION Domestic Relations District Court Judge agreed with the father's contention and found Virginia to be the "home state," but that court sua sponte declined to exercise jurisdiction as an inconve- nient forum.2 On appeal, the circuit court judge held that Macedonia was the home state.3 So where is the clarity we were expecting in the UCCJEA? A Little History Virginia adopted the UCCJEA);4 after federal enactment of the Parental Kidnapping Prevention Act (PKPA). Both acts differ from the predecessor Uniform Child Custody Jurisdiction Act (UCCJA) in a preference for jurisdiction for custody deter- minations in the "home state" of the child.5 "Home state" is defined in both the UCCJEA and PKPA as "the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the men- tioned persons is part of the period."6 For a court to have jurisdiction to make an initial custody determination under the UCCJEA and the PKPA, the court must be in the home state of the child on the date of the commence- ment of the proceeding, or the court is in what was the home state of the child within six months before the commencement of the pro- ceeding and the child is absent from the state but a parent or person acting as a parent continues to live in the state.7 www.vsb.org

Articles in this issue

Links on this page

Archives of this issue

view archives of Virginia Lawyer - VaLawyer_Feb2012